Download PDF | (Cambridge Studies in Islamic Civilization) Sohaira Z. M. Siddiqui - Law and Politics under the Abbasids. An Intellectual Portrait of al-Juwayni-Cambridge University Press (2019).
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Law and Politics under the Abbasids Abu Ma’ali al-Juwayni (d. 478/1085) lived in a politically tumultuous period. The rise of powerful dynastic families forced the Abbasid Caliph into a position of titular power and created instability. He also witnessed intellectual upheavals living amid great theological and legal diversity. Collectively, these experiences led him to consider questions of religious certainty and social and political continuity. He questioned that if political elites are constantly changing, paralleled with shifting intellectual allegiances, what ensures the continuity of religion? He concluded that continuity of society is contingent on knowledge and practice of the Shari’a. Here, Sohaira Z. M. Siddiqui explores how scholars grappled with questions of human reason and knowledge, and how their answers to these questions often led them to challenge dominant ideas of what the Shari’a is. By doing this, she highlights the interconnections between alJuwayni’s discussions on theology, law, and politics and the sociopolitical intellectual landscapes that forged them.
Sohaira Z. M. Siddiqui is an assistant professor at Georgetown University Qatar. She has published articles in the Journal of Islamic Studies, Islamic Law and Society, the Journal of the American Oriental Society, and Middle East Law and Governance. She is also the editor of a forthcoming volume entitled Locating the Shari’a: Legal Fluidity in Theory, History and Practice. She has held fellowships at the University of Cambridge and Harvard Law School and is a series editor for Sapientia Islamica.
Introduction
Imagine, if you will, the two Persian luminaries, Abū Is_ hāq al-Shīrāzī (d. 476/1083) and Abū Maʿālī al-Juwaynī (d. 478/1085), sitting with knees crossed and brows tightened as they fervently debate whether it is the consideration of time or direction that is more integral to the performance of obligatory prayers, after which they turn their attention to the proper scope of marital agency on the part of the adult virgin. Beyond sharing an affinity for the law, al-Shīrāzī 1 and al-Juwaynī were at the helm of the newly established Ni_ zāmiyya madrassas in Baghdad and Nishapur, respectively. Readers who stumble on these debates in al-Subkī’s Tabaq ̣ āt al-Shāfiʿiyya can almost visualize the two scholars perched in a miniature.2 In the background would appear the towering madrassa of Nishapur and a vibrant market; in the foreground would be an eclectic audience of devoted students and passers-by, with books delicately balanced atop one another in the corner. In the first debate, al-Juwaynī asserts that facing the correct direction is more important to fulfilling one’s duty of prayer, while al-Shīrāzī argues instead that it is praying at the proper time.
To support his claim, the latter invokes the permission granted for one to pray while mounted on an animal, which ignores the direction of the qibla, as does the prayer of fear (khawf) in wartime. In both scenarios, the direction of the qibla may be disregarded, but the designated prayer time may not. Al-Juwaynī rebuts these examples with his own, pointing to the permission to join prayers while traveling, ignoring the prescribed prayer times but not the direction. Both scholars accept that in certain circumstances obligations with respect to prayer direction or time can be abandoned without invalidating the prayer.3 The debate is thus not about validity, but rather about which element is intrinsically more important to prayer in the mind of the Lawgiver. In spite of the ardor of the discussion, the absence of legal consequence for either position may lead the reader to conclude that the issue is inconsequential. What is the point of two great scholars debating which element of prayer is more important when both elements can be forfeited? Is this just another example of the pedantic nature of legal sparring, or does it reveal something deeper about how Islamic law was conceptualized by two of the greatest legal minds of the fifth/eleventh century? Indeed, far from a mere exercise, the exchange between al-Juwaynī and al-Shīrāzī encapsulates the core guiding principle of the juristic vocation in Islam – that God’s law is enclosed within the mind of the Lawgiver and that jurists, while seeking to capture it, must accept the fallibility of their own opinion and, as a corollary, the possibility of the veracity of their opponent’s.
The debate between the two scholars ends on this note, with each defending his position while conceding the potential correctness of the other’s view. Scholars of Islamic law have referred to this guiding legal principle in a variety of ways – such as “the valorization of uncertainty,” “legal indeterminacy,” and “self-conscious epistemology” – all of which emphasize the acceptance on the part of jurists of the gulf that exists between the law as reasoned and the law as dictated by God. Yet while the domain of Islamic law accepts legal uncertainty in many circumstances, this principle is not extended to the realm of theology (kalām). Theologians – the mutakallimūn – have, in fact, been adamant that the soundness of one’s belief in God is contingent on the certainty of rational proofs,4 which lead one to accept the truth of the Prophetic message and all that it entails. This axiom has motivated theologians to expend great effort in providing logically sound proofs for belief so as to assuage the doubts of laypersons and withstand the critiques of skeptics of belief. Once the veracity of the Prophetic message has been established, reason no longer functions as an independent tool of inquiry for the acquisition of knowledge, but now takes its place alongside revelation. This is not to say that revelation trumps reason, a topic of great debate;5 rather, revelation comes both to guide and to assist the human intellect. On a theoretical level, the differentiation between the acceptance of legal uncertainty and the drive for theological certainty is reflected in theological and legal works.
On a more practical level, however, scholars have more often than not been both jurists and theologians, constantly straddling the competing epistemological paradigms of these two disciplines. As a scholar, al-Juwaynī was lauded both as an Ashʿarī theologian and as a renowned Shāfiʿī jurist. Although he recognized, as had others before him, the distinct epistemological paradigms in theological versus legal discourse, al-Juwaynī came to emphasize the theme of certainty – and this preoccupation can be identified not just in his theological works but also across his entire oeuvre. The aim of this book is to present the shared intellectual threads that connect al-Juwaynī’s theological, legal, and political writings. Rather than evaluate his major texts as discrete units, I start with the assertion that al-Juwaynī was a syncretic thinker with a specific intellectual project that can be identified regardless of which texts of his are analyzed. This intellectual project, which both informed and molded al-Juwaynī’s intellectual concerns, was not formulated in a vacuum but rather emerged within a sociopolitical environment that left an indelible mark on him. On the intellectual scene, al-Juwaynī observed his Ashʿarī comrades embroiled in debates with their rivals, the Muʿtazila, who confidently asserted that one could arrive at certainty in both legal and theological matters.
On a very basic level, the tension produced within al-Juwaynī by the conflicting epistemologies of these two schools gave rise to his profound concern with certainty. However, it was not his intellectual environment alone that had such a profound and permanent effect on al-Juwaynī. He lived in a politically tumultuous period, in which the rise of powerful dynastic families forced the ʿAbbasid caliph into a position of merely titular power. Witnessing upheavals and the rise of countercaliphates, the most prominent of these being the Fatimids,6 al-Juwaynī also became preoccupied with the question of continuity – both of social mores and of religious doctrine. If political elites, and along with them intellectual allegiances, are constantly changing, al-Juwaynī worried, what ensures the continuity of religion? Just in his short lifetime, al-Juwaynī experienced, at the hands of a singular dynastic power, the Seljuks, both the persecution and the adulation of the Ashʿarī-Shāfiʿīs. If the Seljuks could adopt such contrasting policies toward the Ashʿarī-Shāfiʿīs within the space of only a few decades, he ruminated that religious thought must be maintained and safeguarded by forces more powerful than just political affiliations and allegiances. His own lived political reality thus encouraged him to rethink the role of the imam in preserving order, and the role of the ʿulamāʾ in preserving religion.
This process ultimately led him to reconceptualize the nature of the Sharīʿa and its relationship to the individuals who practice it. To respond to his dual concerns of certainty and continuity, alJuwaynī made foundational changes to the Ashʿarī epistemology he had inherited in order to enlarge the scope of knowledge individuals can achieve certainty in. This departure facilitated the creation of a dialectical relationship between certainty and continuity in which the continuity of religion and society is possible only through the epistemically certain knowledge attained by individuals, and this epistemically certain knowledge is in turn preserved by the continuity of the society these individuals inhabit. As we explore al-Juwaynī’s theological, legal, and political texts in the course of this book, this dialectical relationship, along with its tensions and implications, will become evident. Although al-Juwaynī has long been recognized as a seminal figure within Islamic intellectual history, there is a striking absence of comprehensive scholarship addressing his thought. By approaching al-Juwaynī not merely as a Shāfiʿī jurist or an Ashʿarī theologian but also as an intellectual figure with a historically informed project that is manifested throughout his works, this book brings some of al-Juwaynī’s most influential texts together into a single conversation, providing insight into a complex thinker and laying the foundation for future research.
a brief glimpse into nishapur
Ideas rarely form in a vacuum – they are produced through a natural engagement with one’s socioreligious context, intellectual inheritance, and political circumstances. The politically strategic and rapidly developing social environment of Nishapur lent itself to the attraction of religious groups vying for political and social authority. Nishapur, alongside Marw, Herat, and Balkh, was one of the four great cities of Khurasan, itself among the important provinces in the ʿAbbasid Empire. In the century before alJuwaynī’s birth, political power in Nishapur passed from the ʿAbbasids to the Samanids and then to the Ghaznavids, with each transition of power ushering in new intellectual trends.7 The rulers of these dynasties quickly realized that while they held political authority, social and religious authority was also integral to legitimacy. Because of the flourishing system of patronage, intellectual trends often reflected changing political circumstances. Shams al-Dīn al-Muqaddasī (ca. 946–91), the lauded geographer, noted during his travels to Nishapur that it was fraught with factionalism along theological lines between the Karrāmiyya and the Shīʿa; however, by the time of the Ghaznavids, the lines of tension had been redrawn.8 The most significant intellectual cleavage in Nishapur before and during the time of al-Juwaynī was that between the Hanaf ̣ ī and Shafiʿī legal schools.
The Ghaznavids, whose rule began in the fourth/tenth century, preferred the Hanaf ̣ īs, meaning that patronage and politically appointed religious positions, such as the post of the chief qā _ dī (judge) and other prominent judgeships, were almost always conferred on Hanaf ̣ ī jurists. Beyond showering direct patronage on individual legal scholars, the Ghaznavids supported the construction of madrassas for prominent Hanaf ̣ ī scholars. But despite the institutional support afforded to the Hanaf ̣ īs, they could not easily eclipse the Shāfiʿīs. As Richard Bulliet has argued, what the Shāfiʿīs lacked in formal political support they made up for through the support of wealthy private families who established systems of patronage and funded the building of madrassas.9 The divide between the Hanaf ̣ īs and the Shāfiʿīs in Nishapur, however, was not merely a sociopolitical one, nor one over substantive matters of law; rather, it was a widening cleft between emerging theologies that would eventually split fully open. Both the Ḥanafīs and the Shāfiʿīs were widely recognized as representatives of legitimate legal schools in Nishapur and throughout the ʿAbbasid Empire. Scholars tracing the historical development of the madhhabs largely agree that by the fourth/tenth century, the legal schools had concretized, and by the fifth/eleventh century, they were an unremarkable part of daily life.10 Given the widespread influence of the legal schools over Islamic societies, leaders of new religious trends sought legitimacy through political patronage.
They could also turn to these legal institutions for validation. To the extent that new religious trends or theologies were adopted by the intellectual flagbearers of the legal schools, they could claim orthodoxy by affiliation. This argument was first forwarded by George Makdisi in relation to the Ashʿarī theological school, which strategically aligned itself with the Shāfiʿī legal school in the fourth/tenth century in order to attain the status of orthodoxy.
The locus of this newfound alliance was Nishapur. Between 290/902 and 343/955, prominent Ashʿarī scholars such as Abū Bakr Mu _ hammad Ibn Fūrak (d. 406/1015), Abū Is_ hāq al-Isfarāyīnī (d. 418/1027), Abū Bakr al-Bāqillānī (d. 403/1013), and Abū Man_ sūr ʿAbd al-Qāhir al-Baghdādī (d. 429/1037) responded to the call of Abū Sahl al-Sụ ʿlukī (d. 369/980) to come and settle in Nishapur. This newly forming Shāfiʿī-Ashʿarī synthesis became the catalyst for further tension between the two legal schools, as the Ḥanafīs did not forge the same alliance with the Ashʿarīs. Prior to the Ashʿarīs’ arrival in Nishapur, many Ḥanafī scholars had supported the Basran Muʿtazilī school, a rival theological school. Tensions increased after 408/1017, when Ma _ hmūd of Ghazna (d. 421/1030), a prominent Ghaznavid ruler, expelled all of the Muʿtazilī scholars to Khurasan, with many settling in Nishapur. The relationship between the Ḥanafīs and the Muʿtazila allowed the latter to flourish in Nishapur, with prominent Muʿtazilī scholars being granted judgeships there. This fueled tensions with the Ashʿarīs, who had entered the intellectual milieu in Nishapur just a few decades earlier.
The strained relationships between the various schools continued under the Ghaznavids, but with the capture of Nishapur in 429/1037 by the Seljuks, a potential spark for change appeared on the horizon. Knowing that they would likely lose political power with the rise of the Seljuks, prominent Ḥanafīs within the city were reluctant to welcome their new rulers. It was thus the Shāfiʿīs, under the leadership of Ibn al-Muwaffaq (d. 440/1048), who brokered the formal entrance of the Seljuks into Nishapur.11 While this earned the Shāfiʿīs temporary favor, Tughril Beg, ̣ the Seljuk sultan, eventually came to favor the Ḥanafīs because of his own personal adherence to the Ḥanafī school.
The political reascendance of the Ḥanafīs highlighted the political impotence of the Ashʿarī-Shāfiʿīs, and in 440/1048 intellectual persecution of the Ashʿarī-Shāfiʿīs began. This persecution culminated in 446/1054, when Tughril Beg commanded the ̣ arrest of four prominent Ashʿarī-Shāfiʿī scholars, among them al-Juwaynī. Though he narrowly escaped arrest by having earlier absconded, alJuwaynī was forced to abandon the city, undertaking travels that would eventually bring him to the Hejaz.12 Al-Juwaynī would return to Nishapur in 451/1059 at the behest of the Seljuk vizier, Ni_ zām al-Mulk (d. 485/1092), who appointed him the head of the newly minted Ni_ zāmiyya madrassa.
However, his turbulent formative years amid shifting political powers and allegiances made addressing the question of social and religious continuity inescapable for him. The pendulous nature of intellectual-political affiliations served to impress on him all the more the need to contemplate the challenge of continuity – a theme most salient in his political writings. Yet the continual political rearrangements notwithstanding, the intellectual and theological lines that divided groups were not simply the outcome of practical decisionmaking on the basis of social power within the city; they also reflected substantive issues that demarcated the competing factions. These substantive issues, alongside political instability, formed the backdrop against which al-Juwaynī’s second primary concern, certainty, was born.
The Ashʿarīs and the Muʿtazila can be distinguished from one another in a variety of ways, but for al-Juwaynī their most important intellectual conflict was an epistemological one. As noted earlier, although Sunnī legal theorists of all schools were generally amenable to the notion of legal uncertainty, theologians were adamant that belief had to have an epistemically certain foundation based on rational proofs. In this schema, the intellect is assumed to be a judicious tool capable of reasoning from rational proofs to arrive at knowledge. Curiously, however, Ashʿarī theologians argued that once an individual arrives at sound belief and receives revelation, further guidance for his or her affairs is derived from revelation, raising the question of why the human intellect is in need of such assistance. If the intellect is able to arrive, with certainty, in belief in God, why, then, can it not reason in other matters? And what does the dependence of reason on revelation entail for law? Given that revelation is the source of guidance for believers, the Ashʿarīs argued that human beings are not accountable for their actions before they receive revelation. Such individuals behave in the world according to what they deem beneficial, but their actions bear no otherworldly legal consequences. With the onset of revelation – the source of morality and guidance – this situation changes. At that point individuals become obligated to act in accordance with God’s dictates and are rewarded and punished accordingly.13 With revelation as the reservoir of guidance, individuals must derive from it a legal and moral code.
This derivation is primarily the duty of prophets and messengers, but with their temporal demise, the mantle of scriptural interpretation passes to jurists. These jurists turn first to the Quran and the _ hadīth in order to deduce the law, but given the hermeneutical complexity of the Quran, the absence of the Prophet, and the fallibility of human reason, rulings issued by jurists are epistemically only probable and cannot be certain. This fact is the foundation of the epistemic uncertainty pervading Islamic law. By contrast, the Basran Muʿtazila afforded reason a wider scope both before and after revelation. As they saw it, morality is not simply legislated through scripture; on the contrary, people can achieve knowledge of what is good and bad through reason – the argument being that each action is either objectively good or objectively bad based on the circumstance of its occurrence.14 This doctrine, known as ta_ hsīn wa-taqbī _ h, means that individuals are responsible for their actions whether or not they have received revelation. Revelation thus comes to affirm what the intellect has already determined or to provide particularities for generalities already deduced. In the realm of law, the Muʿtazila, like the Ashʿarīs, acknowledged the hermeneutical complexity of scripture and the difficulty entailed by the absence of the Prophet. But given their belief in the independence of the intellect, the law for them was not burdened to the same extent with legal uncertainty.
The Muʿtazila, though relying on scriptural sources, stressed the importance of the intellect when scriptural sources were silent and believed in the epistemological equivalence of rulings deduced from scripture and rulings deduced through the intellect. Given the diverging epistemologies of the Ashʿarīs and the Muʿtazila and the ramifications of their respective theories for the epistemological value of legal rulings, the two schools’ coexistence in Nishapur was bound to cause tension and conflict as well as synthesis. In the early part of al-Juwaynī’s life, before his sojourn in the Hejaz, the intellectual conflicts between the Ashʿarīs and the Muʿtazila and between the Ḥanafīs and the Shāfiʿīs punctuated his life and career. And although he emerged triumphant, returning to Nishapur to assume a position at the prestigious Ni_ zāmiyya, these early conflicts had an enduring impact on his prodigious production. On the political front, the precarious nature of politics during his lifetime ushered in his concern for stability, and on the intellectual front, the legal and theological factionalism resulted in his desire to provide rationally sound and epistemically certain arguments for both belief and legal action.
al-juwaynı¯: between certainty and continuity
Al-Juwaynī’s intellectual work is best read as his response to, and means of coping with, the most pressing intellectual and political challenges of his time. The parallel themes of theological and legal certainty, on the one hand, and social and religious continuity, on the other, emerge directly from his environment. It is, however, important to note that it was not simply the socioreligious politics of Nishapur that produced al-Juwaynī’s dual concerns. As Paul Heck has recently elaborated in Skepticism in Islam, from the third/ninth to fifth/eleventh centuries, Muslim scholars were concerned with skepticism and its corollary, certainty. The hub of this movement in the third/ninth century was Baghdad, where diverse intellectual interlocutors were forced to defend their positions and contend with opposing ones. With its political stability and patronage, Baghdad became the center of intellectual inquiry, allowing scholars to employ a variety of intellectual strategies, including skepticism. However, these scholars were not skeptics in the traditional sense of denying the possibility of knowledge; rather, they employed skepticism as a “constitutive element of religious reasoning.”15
Their goal was to “question assumptions about the way in which knowledge, in this case religious knowledge, can be established as certain.”16 The epistemological desire for certainty and invocation of skepticism was thus not unique to al-Juwaynī but was very much in the intellectual air. What is unique about al-Juwaynī is the manner in which he resolved his quest for certainty and the extent to which a desire for continuity is imbricated in his quest for certainty. To achieve a basis for certainty, al-Juwaynī moves beyond the legal and theological constraints he inherited from the Ashʿarīs to construct a new epistemology, broadening the scope of human reason. In doing so, he is concerned not merely with epistemic certainty but also with practical certainty for both individuals and jurists in legal matters. Certainty, for alJuwaynī, is contingent on whether individuals can assert true knowledge of something or confidence in their conclusion. Whereas knowledge for al-Juwaynī’s Ashʿarī predecessors was the product of either reason or revelation, he, by contrast, argues that knowledge can also be acquired through custom or repetition. That is, to the extent that a certain practice is habitual for an individual, it can be said to be practically certain from that individual’s perspective, whether or not it is epistemically certain from an objective perspective. This means that al-Juwaynī addresses certainty not just through an objective epistemological lens but also through a subjective, personal one. In applying his epistemology to legal thought, al-Juwaynī has two goals: (1) establishing a definitive basis of authority for the primary sources of legal derivation and (2) achieving epistemic certainty in rulings. While he is easily able to accomplish the former, he is frustrated in the latter, given that epistemic certainty in the domain of Islamic law is contingent on both the accurate transmission of scriptural sources and their clear signification – considerably narrowing the realm of legal norms that are truly epistemically certain. Recognizing the impossibility of arriving at objective epistemic certainty in all legal affairs, al-Juwaynī consequently elevates his desire for societal and religious continuity over his desire for legal certainty. Societal continuity for al-Juwaynī is tied to the idea of legal universality – the belief that for every human action there is a specific legal ruling – which means that the continuity of society is contingent on knowledge and practice of the Sharīʿa.
This is best exemplified in his political thought, where he emphasizes the imam’s duty to safeguard and propagate the faith. But given his own fragile political context, marred by the weakness of the caliphate, he recognizes that the imamate could deteriorate. Consequently, he philosophizes about the mechanisms through which the security and continuity of society might be guaranteed. He concludes that social continuity in this situation is contingent on the practical certainty that individuals or society have in legal knowledge. In this way, the continuity of society is bound to the certain knowledge of the individual, not the continued existence of a specific political structure, revealing that the two concerns stand in a dialectical relationship and can never be invoked singularly.
al-juwaynı¯ and themes in islamic studies
In setting out to write this book, I faced a choice between two predominant modes of approaching the study of Islamic intellectual history. The first traces the evolution of an idea or concept to illuminate its development over time, whereas the second studies an individual in order to demonstrate that person’s contributions to a broader intellectual discourse. The former approach affords scholars a coherent bird’s-eye view of perennial themes and trends that traverse temporal and locational constraints, imparting a sense of cohesiveness to an intellectual project that may span centuries. The latter approach adds a layer of nuance to thematic discussions by pointing to the intellectual diversity that exists within sustained discussions.
This book, through the lens of studying al-Juwaynī, aims to achieve the second of these tasks. Usually recounted in contemporary discourse as an archetypal Ashʿarī-Shāfiʿī scholar, al-Juwaynī, in following his dual preoccupation with certainty and continuity, departs from the dominant opinions put forward by Sunnī scholars before him. In tracing al-Juwaynī’s divergences, I necessarily engage with themes and concepts identified by scholars of Islamic intellectual thought who have employed the first of the two scholarly approaches mentioned above. Of these issues, the most prominent in this work are reason and revelation, legal uncertainty, and the role of the caliph. These themes are woven throughout al-Juwaynī’s work and his conclusions, and often his departures from the positions of his predecessors with regard to each of the themes can contribute to a fuller and more nuanced understanding of the development of Islamic intellectual thought, especially in the fifth/eleventh century.
In Speculative Theology: Reason and Revelation
Al-Juwaynī’s concern with certainty entails a corollary investigation into the sources of knowledge and the mechanisms of knowledge creation. While al-Juwaynī’s fixation on certainty constituted a central element of his thinking, his engagement with the sources of knowledge harks back to perennial questions in the history of Islamic intellectual life. During the time of the Prophet, the centrality of revelation as a source of knowledge was established, and reason acted as an instrument for comprehension. The Prophet’s role as the divine vessel precluded conflicts between these two cardinal sources, but following the death of the Prophet, scholars questioned whether such conflict had now become possible.17 According to A. J. Wensinck, these early debates on the potential tension between reason and revelation intensified in the fourth/tenth century, when systematic Ashʿarī theology emerged as a rebuttal to Muʿtazilī arguments.18 A central point of contention between the two groups was whether conflict between reason and revelation is possible and, if so, which source of knowledge should prevail. For the Muʿtazila, the answer was straightforward: revelation merely affirms what can be concluded through the use of reason, and therefore conflict cannot exist – both humans and God are bound by the laws of reason. By contrast, the Ashʿarīs asserted the omnipotence of God: while God may act in accordance with human reason, He is not bound to do so. Thus, on the surface, for the Muʿtazila, a conflict between reason and revelation was impossible. For the Ashʿarīs, it was improbable but possible.
Although the question of conflict between reason and revelation was introduced through the quarrel between the Ashʿarīs and the Muʿtazila, it was not resolved by these two schools. Early Ashʿarīs, despite recognizing the centrality of epistemology, did not present a robust enough epistemological framework to address this issue fully. They were more concerned, as Josef van Ess has argued, with answering foundational questions regarding the existence of God and His attributes.19 In surveying the texts of al-Ashʿarī, Wensinck goes as far as to say that al-Ashʿarī put forward no clear epistemological doctrine. For Wensinck, the first scholar to address epistemology properly was Abū Man_ sūr al-Baghdādī in his U _ sūl al-dīn, and to him should be added the name of Abū Bakr al-Bāqillānī. AlBāqillānī and al-Baghdādī, students of al-Ashʿarī’s own students, penned some of the earliest systematic books on Ashʿarī kalām, which were later studied by al-Juwaynī. Yet despite the citation of these thinkers as early progenitors of theories of epistemology, Frank Griffel argues that the most comprehensive examination of the potential conflict between reason and revelation – and its resolution – took place at the hands of al-Ghazālī, due primarily to a synthesis forged between the Ashʿarīs and the falāsifa (philosophers).
Abū Ḥāmid al-Ghazālī (d. 505/1111), who passed away almost a full century after al-Bāqillānī and al-Baghdādī, is credited with providing a robust theoretical apparatus to resolve the potential conflict between reason and revelation by incorporating philosophical tools of reasoning – the most important being logic – into Ashʿarī kalām. 20 Griffel argues that al-Ghazālī saw reason and revelation as emanating from a single source, namely, God, which entails that they work in tandem, not in tension. At the same time, it is conceivable that human beings misapprehend revelation, resulting in an apparent conflict between reason and revelation and leading them to conclusions involving heterodox interpretations. To avoid such outcomes, al-Ghazālī articulates the qānūn al-taʾwīl (rules of interpretation): a literal interpretation of scriptural sources is preferred, but a nonliteral interpretation is permitted in certain circumstances. The qānūn further details when a nonliteral interpretation is permissible, along with the extent of its application.
According to Ovamir Anjum, the relationship between the qānūn and the conflict between reason and revelation is predicated on al-Ghazālī’s notion of demonstration (burhān). For al-Ghazālī, if rational demonstration can establish a proposition beyond doubt, revelation cannot be interpreted in a way that conflicts with it. If a conflict arises, the qanūn dictates that a nonliteral interpretation be invoked in order to unify the two propositions.22 Al-Ghazālī’s trepidation regarding conflict stems from the implications of calling reason into question, since both the assertion of faith and the recognition of revelation are results of reason.
By arguing for sound knowledge through demonstration, al-Ghazālī elevates human reason to the level of revelation. In his view, any conflict between the two must be due either to incorrect reasoning or to a failure to interpret figuratively when necessary – both being methodological errors rather than indicators of an intrinsic conflict between reason and revelation. Ashʿarī scholars accepted al-Ghazālī’s doctrine of qānūn al-taʾwīl and his demonstration as a resolution of the issue, and later scholars built on al-Ghazālī’s theories to continue to expand the scope of human reason. If al-Ghazālī was the catalyst for the kalām–falsafa synthesis, Fakhr al-Dīn al-Rāzī (d. 544/1149) represents its apex. Ayman Shihadeh argues that alRāzī’s thought, especially toward the end of his life, offered, “for the first time, an ‘Islamic philosophy.’”23 Al-Rāzī gives an even more dominant role to reason than did al-Ghazālī, averring that reason can give an individual sound knowledge of things not accounted for in revelation. This is because “the human psyche seeks pleasure and avoids pain”24 and “the measure of moral value becomes the subjective interests of the individual agent, though Revealed Law is reinstated as an objective source for normative judgement.”25 In al-Rāzī’s conception, though scripture remains a source of normative judgments, reason itself is an independent judicious tool that can provide individuals with certitude in matters not directly addressed in revelation. But while al-Ghazālī is credited with setting in motion the synthesis between reason and revelation and al-Rāzī with extending reason beyond the realm of revelation, it was al-Juwaynī who laid the groundwork for both innovations.
Al-Juwaynī affirmed the centrality of revelation while emphasizing that reasoning (na_ zar) can produce sound conclusions that accord with revelation. Like al-Ghazālī, who recognized the singular source of reason and revelation, al-Juwaynī asserted that sound reason should not conflict with what is conveyed in revelation. If a conflict emerges, it is likely due either to unsound reasoning (al-na_ zar al-fāsid) brought about by incorrect proofs or to the absence of convincing demonstrations. Al-Juwaynī does not go further, however – as al-Ghazālī does – to argue that scriptural interpretation can be the source of the apparent conflict between reason and revelation, thereby necessitating the qānūn. Yet despite the fact that it overlooks the interpretational problems that can be engendered by revelation, al-Juwaynī’s equalization of reason and revelation as sources of knowledge demonstrates that Ashʿarī epistemology, though previously articulated by al-Baghdādī and al-Bāqillānī, was still changing in fundamental ways. And although al-Ghazālī’s scholarship may have marked a definitive turn within Ashʿarī kalām, this turn was likely precipitated by al-Juwaynī.
In Legal Theory: Legal Uncertainty
Al-Juwaynī’s emphasis on reason was integral to theological mediation, as he saw reason as the only mechanism through which the individual could assent to faith with certainty. For al-Juwaynī, uncertain or probable faith was not simply weak but unacceptable. In law, however, both certainty and probability were accepted and, in fact, necessary. Aron Zysow, in his seminal work The Economy of Certainty, asserts that “certainty and probability were the fundamental categories with which [jurists] approached every question of law.”26 These categories of certainty and probability were applied to legal rulings, but before that they were applied most fundamentally to legal sources. The main distinction in u _ sūl al-fiqh, according to Zysow, is between formalist and materialist jurists. The former were more preoccupied with the sources of the law, believing that the validity of legal norms “is ensured by the fact that the framework within which [the jurist] practices is known with certainty.”27 Probability enters the formalist system of law in legal rulings themselves: although the sources of the law are certain, the actual laws derived from them are not. Opposite the formalists stood the materialists, who afforded no place to probability within the law. For them, both the scriptural sources of the law and the legal framework had to be epistemically certain, resulting in a body of epistemically certain rulings only. In Zysow’s classification, the Shāfiʿīs were thoroughgoing formalists. Focusing on the framework of the law, they sought to ensure an epistemically certain foundation for each source of the law but were willing to entertain probability in legal outcomes. But how exactly was probability introduced to the domain of legal interpretation? Uncertainty, from the formalist viewpoint, seeped into the law via two sources: scriptural interpretation and scriptural limitation.
Despite the exhaustive hermeneutical discussions undertaken by jurists to ensure the accurate interpretation of scriptural sources, scriptural interpretation was recognized as susceptible to the inescapably fallible nature of human reason in interpreting the injunctions of God. For Baber Johansen, the potential fallibility of human reasoning has three repercussions within the realm of law: (1) the legitimization of “normative pluralism,” allowing for multiple schools of fiqh and normative systems; (2) “the peaceful coexistence” of conflicting yet legitimate normative systems; and (3) the protection of the judiciary from “ethical and cognitive” attacks.28 Taken together, these features give rise to what Johansen labels the “contingency of the law.” Of the three, the most important is the acceptance of normative pluralism within the law, something academics have noted to be the sine qua non of Islamic law. In Johansen’s mind, the foundation of normative pluralism relates directly to the “ontological difference between the knowledge as revealed by God in the Koranic texts ... and the knowledge which human beings acquire through their own reasoning.”29 Once jurists accept the ontological distinction between knowledge produced by reason and knowledge conveyed by the Lawgiver, they are forced to concede the existence of legal uncertainty. The other mechanism by which legal uncertainty is introduced, scriptural limitation, delimits the realm from which legal norms can be generated to scripture alone. Given the paucity of scriptural commands, jurists were compelled to derive rulings on the basis either of analogies to scriptural rulings or of broad objectives (maqā _ sid) that could be extracted from scripture. Sherman Jackson labels this the “hegemonic propensity of the religious law,” wherein “the only sound judgements are those rooted in scripture.”30
This notion of scripturalism meant that jurists sought to attach their derived norms to scriptural sources, even if only tangentially, and as the gulf between generated rulings and scriptural sources widened, probability permeated the legal realm. As Jackson notes, “the authority of an interpretation could not, therefore, inhere in the interpretation itself, since no interpretation could claim to be objectively true, at least not in any way that its truth could be objectively known and verified.”31 The ability of jurists to derive rulings only tangentially connected to scriptural sources is a product of what David Vishanoff calls the “law-oriented hermeneutical paradigm”: The triumph of the law-oriented paradigm ... guaranteed that scholars of law would always be able to imagine their systems of legal rules as revealed and thus divinely authoritative, even as they continued to adapt those laws to changing social contexts. The law-oriented hermeneutical paradigm did this because it maximized both interpretive power and interpretive flexibility. That is, it maximized in theory the ability of an imagined interpreter to ascribe a strong and definite legal significance to a text, while simultaneously maximizing his ability to depart from that definitive meaning as needed.32 While the law-oriented paradigm and its corollary of interpretative flexibility afforded jurists the benefit of norm generation beyond the plain meaning of the text, the resultant rulings could not escape a probabilistic character.
The paradox generative of legal probability thus centers on scripture: jurists hold steadfast to the belief that scripture is the font of norm generation, but its limited nature, coupled with the fallibility of human reason, forces them to acquiesce to the existence of probability.33 On this basis, the meta-principle guiding the juristic vocation and human behavior is that overwhelming probability (ghalabat al-_ zann) necessitates action. The mujtahid who seeks legal rulings is, therefore, not pursuing an objectively correct answer (normative plurality is accepted); instead, the search is for an answer that prevails in the jurist’s mind. And though the four Sunnī schools differed as to whether they considered that an objectively correct answer exists in the mind of the Lawgiver, they all upheld the basic validity of legal plurality and legal uncertainty. Al-Juwaynī inherited the juristic concession to legal uncertainty. However, given his intellectual context, shaped by debates with the Muʿtazila, who touted the ability of their epistemology to provide certainty in legal norms, the acceptance of legal uncertainty seemed to him to leave the Shāfiʿī-Ashʿarīs in a precarious position in relation to their intellectual rivals. As Johansen observes, underlying the acceptance of legal uncertainty is a theological postulate that asserts an ontological difference between the knowledge God has as Lawgiver and the knowledge humans acquire of legal norms through the fallible medium of human reason.34 While alJuwaynī does not reject this ontological differentiation, he circumvents it by expanding the sources of knowledge and focusing on the ability of individuals to reach certainty in their personal affairs.
The former he achieves by incorporating custom as a legitimate source of knowledge alongside reason and revelation, and the latter he accomplishes by asserting that habitual practice that becomes customary to an individual can result in practical certainty, even though it remains epistemically uncertain. By advocating for the possibility of practical certainty in human affairs through customary practice, al-Juwaynī is not rejecting the ontological differentiation between human knowledge and God’s knowledge but separating the two to accommodate the existence of a realm of such practical certainty.
Though this reliance on custom does not bridge the epistemic gulf between a norm conceived by a jurist and a norm articulated by God, it does create a basis for certainty in individual action. In terms of rulings derived by jurists, since al-Juwaynī contends that sound reasoning can enable one to arrive at true knowledge, overwhelming probability predominating in the mind of a jurist when searching for a legal norm is therefore tantamount to subjective certainty. In such a situation, jurists in their reasoning, like lay people in their practice, attain practical certainty in their conclusions, despite the ontological fact that their opinions are only probable. And though this distinction does not substantively weaken the position of the Muʿtazila, it does open up a theoretical realm of practical certainty within Islamic law. The connection between epistemology and legal theory in al-Juwaynī’s work is not itself new, as scholars had long recognized the interconnection between kalām and u _ sūl al-fiqh, with epistemology serving as the nexus.35 However, al-Juwaynī’s reformulated epistemology does suggest that Ashʿarī epistemology was still subject to debate in the fifth/eleventh century, which means that one ought not presuppose the epistemology of any scholar when delving into his or her legal thought. In the case of alJuwaynī, his epistemology fashions new proofs for the cardinal sources of the law and allows for the potential of legal certainty for individuals. AlJuwaynī’s approach to epistemology also challenges the neat division proposed by Zysow that distinguishes between formalistic legal systems, which tie epistemic certainty to process and procedure, and materialist legal systems, which tie epistemic certainty to the sources of the law.36 For al-Juwaynī, epistemic certainty is about the material sources of the law, the process through which the laws are derived, and the individual enactment of the law. This perspective augments our conception of how acceptable uncertainty was within a formalistic legal paradigm and demonstrates that while the cardinal sources of the law were agreed on in the fifth/eleventh century, contestation around the foundations of their legitimacy and the epistemic value of the resultant rulings continued. Al-Juwaynī’s concern for certainty not only gives nuance to our scholarly understanding of legal uncertainty and the debate of reason versus revelation but also sheds light on the development of the Shāfiʿī school and the scholars whom Kevin Reinhart labels the “speculative Shāfiʿīs.”37
The connection between the Shāfiʿī school and theological inquiry was first articulated by George Makdisi, who argues that al-Shāfiʿī’s legal theory was an attempt to provide an alternative to speculative theology (kalām), which often dominated early intellectual discourse.38 Citing him as the first true “traditionalist,” Makdisi argues that not only did al-Shāfiʿī seek to establish the centrality of _ hadīth in legal reasoning, but he also sought to create a science that could “be used as an antidote to kalām.”39 Ahmed El Shamsy notes that al-Shāfiʿī’s disdain for kalām resulted in his engagement in certain theoretical-theological discussions that were then expanded on by later Shāfiʿīs, marking an increasing turn toward kalām. Presenting the hitherto unstudied texts of Ibn Surayj (d. 306/918) and al-Khaffāf (first half of the fourth/tenth century), El Shamsy argues that these two scholars furthered theoretical inquiry and “[a]s part of this process ... introduced a keen attention to delineating the relationship between reason and revelation, reflecting an influx of theological concerns, particularly ethics and natural philosophy, as well as theories of language.”40 Ibn Surayj is an important figure not only for El Shamsy but also for Reinhart, who traces a unique brand of Shāfiʿī-Muʿtazilī thought back to him. Unfortunately, no major legal-theoretical works by Ibn Surayj or others whom Reinhart places in this camp, such as ʿAbd Allāh al-Sayraf ̣ ī (d. 330/342) and alQaffāl al-Shāshī al-Kabīr (d. 365/976), have survived.41 El Shamsy notes, “The most likely reason for the disappearance of these works lies in the theological attitudes that they displayed – attitudes rooted in Muʿtazilī ethics, which came to be considered unacceptable by later generations of Shāfiʿī jurists.”42 Reinhart and El Shamsy identify two discussions that were heavily influenced by the Muʿtazila: the status of human action prior to revelation and the connection between the rationality of the law and human benefit (ma_ sla_ ha). Surveying the short surviving works of al-Khaffāf and al-Qaffāl al-Kabīr, El Shamsy argues that both believed in a “double rationality of the law” that returns to ideas espoused by the Muʿtazilīs of Baghdad.43 Though El Shamsy argues for some continuities in Shāfiʿī thought from the eponym of the school to the scholars of the late fourth/ tenth century, given the paucity of extant texts available, a comprehensive history of the middle centuries is currently unlikely. Given that the present work focuses on a scholar of the fifth/eleventh century, I will make no attempt to construct arguments for the middle centuries or to project alJuwaynī’s ideas back to scholars who may be his intellectual forebears; however, since al-Juwaynī’s epistemology was likely influenced by the Basran Muʿtazilīs, the brand of “speculative Shāfiʿism” highlighted by Reinhart may not be limited to the middle centuries of early Shāfiʿīs. Though al-Juwaynī’s positions on the issues outlined by El Shamsy and Reinhart are unremarkable, his departure from traditional Shāfiʿī and Ashʿarī positions on other issues indicates that legal-theological crosspollination in the fifth/eleventh century would be a worthy subject of further inquiry.
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